Seán Fleming (Laois-Offaly, Fianna Fail) | Oireachtas source

I welcome the opportunity to speak on the Bill. I welcome its presentation by the Minister, Deputy Frances Fitzgerald, in her new Department and congratulate and thank her for completing the work that had been ongoing and bringing it to fruition as a meaningful and positive contribution for all of Irish society. For too long, children were to be seen and not heard, but now they will have a voice.

I want to deal with a number of issues and I will deal first with the wording to be put into the Constitution. I fully support the wording and I want to elaborate on a few areas in which some people may want to pick holes during the referendum campaign. The first sub-article of the amendment states: "The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights." People have already criticised the phrase "as far as practicable" but it is a fair and reasonable wording to include in the amendment because, if it were not there, there would be an absolute requirement on the State to provide a particular set of rights over and above everybody else's. In an ideal world we would not need this but, unfortunately, we live in the real world and people can only do what they can do. That is why I support the phrase "as far as practicable".

Sub-article 2.1° states: "In exceptional cases, where the parents, regardless of their marital status ..." This is very important as people are afraid there may be cases in which children will be taken from married parents. The word "exceptional" is proper. The Supreme Court is normally quite a conservative body and it will interpret that in a correct manner. People do not need to fear that anything negative will happen in this regard.

The sub-article continues: "the State ... shall, by proportionate means as provided by law, endeavour to supply the place of the parents ..." I support the use of the phrase "by proportionate means", which is important. I believe that phrase entered the political lexicon recently in regard to judge's pay in that judges were afraid they would be picked out and that this would be disproportionate. Using the word "proportionate" is correct because everything in society must be proportionate and this will ensure the State acts in a proportionate manner and does not go over the top or drag its feet. The inclusion of "proportionate" is sensible and, at the risk of sounding clichéd, it is a proportionate word to use in this circumstance. Again, this sub-article stresses "the natural and imprescriptible rights of the child."

Under sub-article 2.2°, "provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law ..." There is separate legislation in this regard, the general scheme of which has been published. If the referendum is passed, which we all hope it will be by an overwhelming majority, that legislation will then be introduced. It is important that people have sight of this legislation now in case they think there is something coming down the tracks that they do not know about. During the course of the debate in the weeks before 10 November, people will be looking at this in a little more detail and it is important that they be fully briefed on the legislation. Initially, we are talking about the referendum but the legislation that will flow from this - if it is passed, as we hope - is equally important in order to give effect to the good intentions we want to insert in the Constitution.

Deputy Penrose stated that the phrase "failed for such a period of time" refers to a period of three years, which is reasonable. Up to now, this could have been interpreted to suggest that while a person may have failed, it is not forever. This would almost abandon the child because of the need to satisfy some judges that a parent had failed in his or her duty if there is even a prospect that he or she might have a Pauline conversion in ten years' time and be willing to look after the child despite not having done so previously. That issue has now been dealt with.

Voluntary placement in regard to adoption will also be dealt with in this legislation, which is very important, and sub-article 2.2° also refers to the "best interests of the child" being a paramount consideration. The final provision, sub-article 4.2°, states: "Provision shall be made in law for securing, as far as practicable, in all proceedings ... in respect of any child who is capable of forming his or her own views, the views of the child ... shall be ascertained and given due weight, having regard to the age and maturity of the child." This is also important. We all know the views of infants will not be fully informed but a 12 or 14 year old child may be capable and know what is going on. When we talk about a child, I presume we are talking about minors up to 18 years of age. Although this might be spelled out during the debate, we need clarity on this issue of obtaining the views of the child.

I presume all of these cases will be held in the family law courts, as most such cases would have been up to now. In that situation, they would be held in camera, which is fine, as it is important that the privacy, personal integrity and family details of the people involved are protected from people with a prurient interest in some of these matters. However, given that we are now putting children's rights into the Constitution, and given that such cases have to be dealt with in camera - as it would be unfair to put children in open court in front of large numbers of people - it must be taken into account that while privacy must be respected and maintained at all stages of the proceedings, there must be some method of ensuring that the outcomes as decided by the various judges in particular family law courts are made available to ensure there is consistency. If everything is done in private, one judge in one part of the country could be following a particular line for years while another judge in a different part of the country is following quite a different line in similar cases. It is important that people should not be victims of geography or of the views of a particular judge. This is why it is important there is some way of monitoring the outcome of these cases while, I stress, respecting the privacy of the people involved.

Many questions could be asked about why we need the referendum, but that has been well established. We want to give children a voice because their voices must be heard. We also want to ensure they have a chance to be adopted and become part of a family, especially where they have been abandoned or are in long-term foster care, and to ensure the State will respond much more quickly than it perhaps has in the past in cases of abuse and neglect. We also want to ensure that in judicial settings, as I have outlined in regard to the wording, the child is at the centre of the case and is given paramount consideration. We want to ensure the abuse that happened in the past does not occur again in the future.

While preparing my notes for the debate, I was reminded of a case referred to by many speakers, the Kilkenny incest investigation carried out by Mrs. Justice Catherine McGuinness, which was presented to the Minister, Deputy Brendan Howlin, in 1993. The Minister has been quite right in pointing to a period of several decades during which we were aware of issues and all parties in government, while they did something, could have done more. To go back to 1993, the Minister, Deputy Howlin - who is now back in government - will, when he looks at that report, probably ask himself why it has taken so long to bring this to fruition. However, it is good that it is now happening 20 years on.

That location is only a few short miles from where I was born and reared. I remember when it came to light there was shock among the local community. We were living in an era where issues that went on within families were swept under the carpet and kept behind closed doors. Thankfully we have a much more open society now where those types of issues are not kept behind closed doors and people no longer believe that if it is a family matter, they should not butt in. That is a legacy of former times.

If memory serves me correctly it was 1979 when I first voted and it was in a referendum on adoption. On the same day there was a referendum about amalgamating the Seanad panels for the University of Ireland and Trinity College. I do not know what happened to that second referendum. It was passed by the people but someone must have made a drafting error and perhaps the wording did not stand up. The adoption referendum was passed overwhelmingly, with almost 100% support. In the referendum on whether Trinity College and the NUI should be amalgamated into one panel in the Seanad, around 6% or 7%, primarily made up of Trinity graduates, voted against. It seems the wording was flawed in some way because it never came to pass, despite the people voting in favour of it. I believe I am correct in saying that the purpose of the adoption referendum was to copperfasten the rights of adoptive families under the Constitution, which gave primacy to the natural family or marital family. A concern was raised about adoptive families having constitutional protection. I remember it well because it was the first time I voted and here we are again, in 2012, voting on a similar---

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